Archives for February 26, 2013

The year 2012 was remarkable for the history of water regulation in Colorado. It marked the 75th anniversary of the legislation that created many of Colorado’s water management organizations, the 100th anniversary of the Rio Grande Reservoir, the 50th anniversary of the Fryingpan-Arkansas project in the Southeastern Water Conservancy District, and the 10th anniversary of the start of the Colorado Foundation for Water Education.

In order to celebrate these anniversaries and acknowledge the importance of water in Colorado’s culture, the Colorado Foundation for Water Education developed the Colorado Water 2012 Initiative. Through fundraising, the initiative raised $130,000 and used it to spread its message of water awareness to over 500,000 Coloradoans.

CLE participated in the Colorado Water 2012 Initiative by hosting quarterly water book club programs, which were webcast throughout the state. Justice Hobbs presented on and signed his books, Living the Four Corners and Into the Grand, at one of these book club events. He also introduced Patty Limerick at the October event about her book, A Ditch in Time.

The Colorado Foundation for Water Education plans to continue many of the projects it began in partnership in 2012. For more information about water-related events in 2013, click here. For continuing updates on water in Colorado, click here.

Gray Peterson, a resident of Washington, applied for a concealed handgun license (“CHL”) from the ex officio sheriff of Denver, Colorado. Pursuant to state law, Colorado sheriffs may issue CHLs only to state residents. Colo. Rev. Stat. § 18-12-203(1)(a). Peterson’s application was accordingly denied, prompting Peterson to file suit against the Denver sheriff and Colorado’s executive director of the Department of Public Safety. Peterson claimed that Colorado’s policy with respect to non-resident CHL applicants violated the Second Amendment and the Privileges and Immunities Clause of Article IV of the United States Constitution.

The district court concluded that the executive director of the Department of Public Safety was entitled to Eleventh Amendment immunity because he had no connection to the enforcement of the challenged statute. The Tenth Circuit agreed with that conclusion. Colorado law requires “each sheriff to implement and administer” the CHL licensing scheme. Colo. Rev. Stat. § 18-12-201(3). Because sheriffs are responsible for administering the state’s CHL regime—not the executive director of the Department of Public Safety—Peterson’s claims against the latter do not fall within the Ex parte Young, 209 U.S. 123 (1908), exception to Eleventh Amendment immunity.

With respect to Peterson’s claims against the Denver sheriff, the Tenth Circuit concluded that the carrying of concealed firearms is not protected by the Second Amendment after applying intermediate scrutiny. The majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. In light of our nation’s extensive practice of restricting citizens’ freedom to carry firearms in a concealed manner, the Tenth Circuit held that this prohibition did not fall within the scope of the Second Amendment’s protections. In other words, the Second Amendment does not provide the right to carry a concealed firearm. Additionally, it is virtually impossible to evaluate a non-resident CHL applicant’s background thoroughly enough to determine that the applicant, if granted a CHL, will not be a danger to himself or the community.

The Tenth Circuit reached the same conclusion with respect to Peterson’s claim that the residency requirement violated his right to travel and violated his rights under the Privileges and Immunities Clause of the U.S. Constitution. As the Supreme Court explained in Supreme Court of Virginia v. Friedman, 487 U.S. 59 (1988), “it is only with respect to those ‘privileges’ and ‘immunities’ bearing on the vitality of the Nation as a single entity that a State must accord residents and nonresidents equal treatment.” Id. at 64-65 . Because the concealed carrying of firearms has been prohibited for much of our history, the Tenth Circuit concluded that this activity failed the Friedman test. In sum, the Tenth Circuit held that carrying a concealed weapon is not a privilege or immunity protected under Article IV.

The Supreme Court reversed the district court’s order suppressing the statements defendant made to police while being interrogated at the hospital following her suicide attempt. The Court held that the hospital bed interrogation was not custodial because (1) the police officers did not restrain defendant; (2) they conducted the interview in a polite and non-confrontational manner; (3) they repeatedly informed defendant that she was not in custody and was welcome to speak with a lawyer; and (4) they terminated the interview minutes after defendant told them she wanted to end it. The Court further held that defendant’s statements were made voluntarily because there was no showing that coercive police conduct played a significant role in inducing defendant’s statements.

Respondents were overcome by poisonous hydrogen sulfide gas while cleaning a large grease clog in a sewer near the Hog’s Breath Saloon & Restaurant. The district court concluded that the restaurant caused respondents’ injuries by dumping substantial amounts of cooking grease into the sewer. On summary judgment, the district court found the restaurant liable under theories of negligence and off-premises liability, and entered a damage award in respondents’ favor.

Mountain States Mutual Casualty Company sought a ruling that it had no obligation to indemnify the restaurant and the district court agreed, holding that dumping substantial amounts of cooking grease constituted a discharge of a pollutant under the policy’s pollution exclusion clause. The court of appeals reversed. It held that the terms of the pollution exclusion clause were ambiguous and that its application to cooking grease could lead to absurd results and negate essential coverage.

The Supreme Court reversed the judgment of the court of appeals. The restaurant discharged enough cooking grease into the sewer system to create a five- to eight-foot clog that led to a dangerous buildup of toxic gas—conduct that violated a city ordinance prohibiting the discharge of a pollutant in an amount that creates an obstruction to the sewer flow. The Court agreed with the district court that, under the circumstances of this case, the discharge of cooking grease amounted to a discharge of a pollutant. Accordingly, the Court held that the pollution exclusion clause barred coverage in this case.

For readers who are new to CBA legislative activity, the Legislative Policy Committee (LPC) is the CBA’s legislative policy-making arm during the legislative session. The LPC meets weekly during the legislative session to determine CBA positions on requests from the various sections and committees of the Bar Association.

At the meeting on Friday, Feb. 22, the LPC voted to take action on several bills at its weekly meeting. Bills the CBA will support:

HB 13–1209. Concerning changes to child support provisions—with necessary amendments to be adopted.

Dependency and Neglect—Termination of Parental Rights—Rights of Intervenors—Due Process Rights of Parents—Foster Parents.

The Supreme Court considered whether foster parents who intervene in a dependency and neglect action pursuant to CRS § 19-3-507(5)(a) possess only a limited right to participate in a hearing on a motion to terminate parental rights. The Court construed § 19-3-507(5)(a) and concluded that foster parents who have properly intervened are afforded the same degree of participation as all other parties at a termination hearing. In addition, the Court concluded that parents’ due process rights were not impacted by the full participation of foster parents in the termination hearing. Therefore, the Court held that foster parents who meet the required statutory criteria to intervene may participate fully in the termination hearing without limitation.

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